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Can journalists use sources that break the law?

The EFF is appealing Apple's legal victory over web sites which used leaked …

In 2004, web site AppleInsider published an "exclusive" account of a new Apple product alleged to be in development, a breakout box for GarageBand dubbed Asteroid (presumably because it allowed you to rock. Rimshot!). Other sites followed suit. Apple, as you might recall, was less than thrilled about the situation and dispatched a squad of black turtlenecked lawyers to deal with the situation. They launched a lawsuit, Apple v. Does, designed to smoke out the leakers within Apple. Apple requested the court to force the web sites in question to turn over all e-mail related to the issue, and last year, the court agreed.

The EFF, concerned about the precedent this could set for online authors, has filed an appeal in the case that will be heard on April 20, 2006. In explaining their decision to press forward with the case, the EFF claims that the most basic rights of journalists are at stake.

In a decision whose sweeping terms threaten every journalist, whether publishing in print, radio, television, or on the Internet, the trial court denied the protective order and held that a journalist?s publication of information that a business deems a trade secret destroys the constitutional protections for the journalist?s confidential sources and unpublished information. EFF petitioned to correct the trial court?s manifest error and restore the previously well-settled constitutional protections for a journalist?s confidential information, upon which the practice of journalism and the freedom of the press depend.

What happened was this: the news sites, with the legal assistance of the EFF, claimed that they were journalists and as such were protected under California's "shield law." The judge said that their status as journalists did not matter because the law in question did nothing to protect illegal activity. Unlike exposing corporate malfeasance, the case in question simply involves the leak of trade secrets for no other reason than to satisfy the curiosity of the public, and the judge ruled that this was not protected.

Protection and regulation of Internet speech has been much in the news lately (see the recent FEC decision to regulate online advertising but not bloggers), but the current case is not one that's unique to the online world. In fact, the Internet has nothing to do with it. Rather, the case is about the right of journalists to keep their sources confidential, even when those sources have broken the law. One needs only to consider the ongoing Valerie Plame affair to see that offline journalists find themselves fighting the same battle.